Supreme Court stays Order directing Azam Khan to give voice sample, issues notice to UP government

The case relates to the use of allegedly derogatory language by Khan against Bahujan Samaj Party chief Mayawati, who was then the chief minister of Uttar Pradesh.

THE Supreme Court on Wednesday stayed an Order of a trial court directing Samajwadi Party (SP) leader Azam Khan to give a voice sample in a hate speech case from 2007.

The case relates to the use of allegedly derogatory language by Khan against Bahujan Samaj Party chief Mayawati, who was then the chief minister of Uttar Pradesh.

The trial court’s Order directing the collection of Khan’s voice sample to match with his speech from 2007 was upheld by the Allahabad High Court on July 25 this year. Khan’s original speech was recorded on a compact disc (CD).

While imposing an interim stay on the high court’s Order confirming the direction on collection of a voice sample, the division Bench comprising Justices A.S. Bopanna and P.K. Mishra issued notice to the Uttar Pradesh government and the complainant in the case.

The complaint was registered by one Dheeraj Kumar Sheel against Khan at the Tanda police station in Rampur, Uttar Pradesh under Sections 504 (intentional insult with intent to provoke breach of the peace) and 171-G (false statement in connection with an election) of the Indian Penal Code, 1860 (IPC).

The police had also invoked Section 125 (promoting enmity between classes in connection with election) of the Representation of the People Act, 1951 (RP Act) and certain provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 against Khan.

Conviction in separate cases

On July 15, a court in Rampur convicted Khan in a separate hate speech case that was registered during the 2019 Lok Sabha election campaign.

The court sentenced him for two years of imprisonment in that case finding him guilty under Section 125 of the RP Act and Sections 171-G and 505(1)(b) (making statement with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public) of the IPC.

The case was lodged against him in Shehzad Nagar in Rampur in April 2019 in which Khan was accused of allegedly making inciting statements against the UP chief minister Yogi Adityanath as well as the then district magistrate of Rampur Aunjaneya Kumar Singh.

Khan had said it was a “misfortune” that the chief minister of UP faced a case of murder against him and that he was a “murderer”, among other statements.

In another case of hate speech from 2019, Khan was found guilty and sentenced to three years of imprisonment. 

On May 24 this year, a member of Parliament–member of legislative assembly special court overturned the conviction in the case.

Law on collecting voice samples

The Supreme Court deliberated whether a judicial order compelling a person to give a sample of their voice would violate the protection against self-incrimination guaranteed by Article 20(3) of the Constitution in the case of Ritesh Sinha versus State of Uttar Pradesh (2019).

The three-judge Bench in that case took note of the nine-judge Bench’s judgment in K.S. Puttaswamy (Retd.) versus Union of India and Others (2017) which recognised the right to privacy under Article 21 (protection of life and personal liberty).

However, the Bench in Ritesh Sinha concluded that the “fundamental right to privacy cannot be construed as absolute and must bow down to compelling public interest.”

Upon finding no express provisions in the Code of Criminal Procedure, 1973 for a judicial magistrate to direct the collection of voice samples, the Supreme Court decided to use its powers under Article 142 (Order necessary to do complete justice).

The court held, “[U]ntil explicit provisions are engrafted in the Code of Criminal Procedure by the Parliament, a judicial magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime.